Esge AG v OHIM (Case T 444/10)

James St.Ville recently acted for De’Longhi Benelux SA as intervener before the Court of Justice of the European Union in ESGE AG v. OHIM (Case T 444/10). De’Longhi succeeded in overcoming relative grounds for opposing registration under Article 8(1)(b) of Council Regulation (EC) No 207/2009.
De’Longhi, proprietor of the famous Kenwood family of kitchen mixers, sought to register the word mark KMIX as a Community Trade Mark (‘CTM’) for various domestic kitchen appliances including mixers. ESGE was proprietor of an earlier CTM, BAMIX, for the same goods and opposed the application. The Board of Appeal at OHIM had dismissed the opposition, finding that the two marks were neither similar nor likely to cause confusion.
On appeal to the General Court, the Seventh Chamber held that OHIM was correct to permit registration of KMIX. Although the two marks ended in the same three letters, the court was persuaded they had significant visual differences. Because the goods in question were usually bought in department stores based on visual inspection, the pronunciation of KMIX (‘Kaymix’, which rhymed with ‘Baymix’) was less significant in the global assessment.